Airtel Networks Zambia Plc v National Housing Authority (2016/HPC/0453) [2020] ZMHC 429 (16 January 2020)

J i IN THE HIGH COURT FOR ZAMBIA 2016/HPC/0453 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AIRTEL NETWORKS ZAMBIA PLC PLAINTIFF AND NATIONAL HOUSING AUTHORITY GIDEONMITI 1 ST DEFENDANT 2ND DEFENDANT Before the Hon Madam Mrs. Justice Irene Zeko Mbewe Appearances For the Plaintiff Mrs. Chirwa of Messrs Ranchod and Chungu Advocates For the J5 1 Defendant: Mr. Mwondela of Messrs Lloyds Jones and Collins Cases referred to: JUDGMENT (. 1. Khalid Mohammed v The Attorney-General [1982] ZR 49 2. Kambela Mazoka and Others v Levy Patrick lvfwanawasa 3. Property Holding Company Limited v Clarke [1945] 1 ALLER 165 Legislation and works referred to: 1. Halsbury's Laws of England, 4th Edition (re-issue) Voll 2. Chitty on Contract Volume 2 3. Black's Law Dictionary, 5'11 Edition Thomson Reuters 4. Mergarry and Wade, the Law of Real Property 5. Halsbwy 's Laws of England, 4th Edition Volume 13 This is the Defendant's counterclaim against the Plaintiff for - JllPa ge (a) A declaration that rent was properly increased by Notice and the Plaintiff is under an obligation to pay the rent at the new rate ofK7,440.00 per month per antenna. (b) An Order that the Plaintiff pays the rent due into Court pending the determination of this matter. (c) An Order that the Plaintiff is and has been at all material times of the rent due and its obligation to pay the rent. (d) An Order that the execution of the WaiTant of Distress was legal and the !51 Defendant is entitled to collect the rent demanded under the warrant of distress. Interest ( e) (t) Costs of this counterclaim. (- The historical context is that the pt Defendant is a body created under Cap 195 of the Laws of Zambia whilst the 2nd Defendant is a certified bailiff and an agent of the l st Defendant. The Plaintiff is a company limited by shares and carrying on the business of providing mobile services provisions. Defendant's case The 1 s1 Defendant initially leased out its property to the Plaintiff in 2008 when the Plaintiff was known as Celtel Zambia Limited. From about 2010-2012 the Plaintiff company was represented by agents known as Zambian Towers Limited (hereinafter referred to as "Zambian Towers") and IHS Zambia Limited (hereinafter referred to as " IHS"). The Plaintiff's rental and correspondence was shared between its agent and the Plaintiff took over the lease of the premises in January 2013. Prior to that, the Plaintiff had not signed a lease with the 1 st Defendant's directly but signed it through its agents Zambia Towers Limited. Zambian Towers handed over the lease to IHS who declined to sign the lease with the 1 st Defendant until the Plaintiff took over the lease and signed a lease agreement. According to the Defendants, when the Plaintiff took over the signing of the lease agreement from IHS the Plaintiff account was in a1Tears of ZMW38,399.56. It is disclosed that the Plaintiff agreed with the I st Defendant that rentals would be paid J2 I Page one year in advance and the Plaintiff subsequently paid the rent for the period April 2015 to May 2016. In February 2016, the 1 st Defendant adjusted its rentals for all its prope11ies including the premises which the Plaintiff occupied and accordingly notified the Plaintiff of the increase of rentals to ZMW7440.00 per month effective l51 April 2016. It is disclosed that when the Plaintiff received the notice it did not contest the increment but wrote to the 1 st Defendant requesting the reduction of the rent and made a counteroffer of ZMW3500.00 per antenna per month notwithstanding that the lease agreement signed had no provision for negotiation of rentals. The 1 st Defendant responded informing the Plaintiff that the rent was not negotiable and was still below the market rent prevailing in the central business district, and the Plaintiff was advised to pay the outstanding rent which accrued as a result of the increment. It is stated that the Plaintiff failed to settle the rent and the 1 st Defendant instructed the 2nd Defendant to levy distress on the Plaintiff. The Plaintiff occupied a portion of the roof of Kulima Tower building situate on Stand Number 4797 Lusaka where it placed equipment forming an antenna and connected the cables powering the antenna to the power source in a small control room belonging to the 1 st Defendant. The Defendants levied distress by walking possession with a view to give the Plaintiff time to pay the I st Defendant the outstanding rent. The Plaintiff refused to pay the rent and the Defendants levied distress by turning off the power supply to the Plaintiffs antenna. According to the 1 st Defendant the Plaintiff has refused or neglected to pay the outstanding rent which stands at ZMWl 78,086.86. The 1 st Defendant has suffered loss and damage as a result of the Plaintiffs refusal to pay the said rent. Plaintifrs case In its defence to counterclaim filed into Cout1 on 11 th October 2017, the Plaintiff denied the Defendants counterclaim and averred that the Plaintiff and 1 st Defendant entered into a lease agreement for the lease of all space known as roof top being a portion ofKulima Tower on P1 January 2013 which lease was for a period of three (3) years. The Plaintiff denied that Zambia Towers was its agent and it was at the 1 st Defendant's volition that it sta11ed communicating with Zambian Towers in relation to the an-angements between the pa11ies. BI Page The Plaintiff denied it took over the signing of the lease agreement between the Plaintiff and the I 51 Defendant from IHS. The Plaintiff denied there are any rental arrears in the sum of ZMW38,399.56. As to the issue of contesting the rent increment, the Plaintiff avened that in February 2016 the l51 Defendant proceeded to unilaterally adjust the rentals from the agreed amount of ZMW2250.00 to ZMW7440.00 effective 1 si April 2016. The Plaintiff rejected the adjustment of rent and instead proposed it pays the amount ofZMW3500.00 payable yearly in advance. The Plaintiff further avened that after rejecting the said increment, it proceeded to pay rent on the same basis as the initial agreement. On 91h September 2016 the I si Defendant proceeded to issue a warrant of distress on the Plaintiff which it found to be illegal and wrongful on the basis that no rentals were owed. The Plaintiff denied that the 151 Defendant took walking possession and that the 1 st Defendant locked the Plaintiff out of the premises and instructed the security guard manning the premises to restrain the Plaintiff from entering the premises. The Plaintiff disclosed that the 1 st Defendant cut the cables in and out of the control room causing damage to the Plaintiffs property resulting in the Plaintiff losing revenue as it was unable to provide telecommunication and other related services to its customers. It denied that rent arrears are owed to the 1 si Defendant in the sum of ZMWl 78,086.86 as it paid all the rent due in line with the agreement. Consequently, it is denied that the 151 Defendant has suffered loss and damage as a result of the Plaintiff's alleged refusal to pay any rent due. • The trial commenced on 29111 November 2018 and 29th January 2019 and the Plaintiff and I si Defendant called two witnesses each. 1 st Defendant's evidence The !51 Defendant's witness was Mukosha Noel Mambwe (DWI) a real estate manager in the employ of the I 51 Defendant who signed and filed a witness statement on 5111 September 2018 with similar averments as in the counterclaim. In cross-examination DWI -1 told the Comt that in 2016 there was no signed lease agreement with the Plaintiff as it had expired in December 2015. He conceded that J4 I Page when the lease expired the Plaintiff remained on the premises. DWl-1 testified that as at January 2016 the rent was at ZMW2250.00 and a rent increment was given to the Plaintiff in February 2016 and effected in April 2016. He informed Court that the rentals were increased to ZMW7740.00 as approved by its board of directors which he admitted represented a 300% increment. DWl-1 disclosed that the Plaintiff only responded to the rent increment in June 2016. When questioned as to whether the I st Defendant was notified to vacate the premises, DWl-1 responded in the negative. DWl-1 conceded that the lease agreement appearing at page 31 of the Defendant's bundle of documents was between the Plaintiff and 151 Defendant dated 2nd July 2013 at rentals of ZMW2,250.00. The witness confirmed that Zambian Towers was not a party to the lease relating to Stand Number 4797. DWI-1 stated that rent was distrained in 2015. When referred to a letter from the Director Real Estate responding to the negotiation of the rental and demand for payment, DWl-1 informed the Court that the letter was addressed to the Procurement Manager Airtel and that there was no proof of any acknowledgment from the Plaintiff herein. DWl-1 stated that the Plaintiff paid rent at the old rate ofZMW2,250.00 to settle an old outstanding number. He admitted a payment of ZMW28, 188.00 was made on 15 th June 2016 from Zambian Towers/ Airtel. DWl-1 testified that as far as he knew Zambian Towers was an agent for Airtel. He informed the Court he never notified the Plaintiff of the deficit relating to the money received in February 2016. • In re-examination, DWl-1 clarified that all tenants including the Plaintiff were sent new lease agreement. In the case of the Plaintiff, it would always send back the lease advising the I st Defendant to send it to Zambian Towers. In respect to the new lease, the letter appearing at page 60 of the bundle of documents from the Airtel Procurement Manager dated 30th June, DWl-1 explained that the Plaintiff did not object to the rental increment except that they wanted to negotiate. D W 1-1 further informed Court that the Plaintiff was advised to seek new sites if they opposed the increment. JS I Page On the issue of Zambian Towers being an agent of the Plaintiff, DWl-1 clarified that in 2010, the P1 Defendant was introduced to Zambian Towers as agents of the Plaintiff even though he had no documents to support this assertion. As to the lease agreement between the pt Defendant and Zambian Towers, DWl-1 told the Court it was never executed. In conclusion DWI-1 clarified that Stand 4797 Lusaka is the property that the Plaintiff occupies. DWl -2 was Fredrick Katongo a debt collector for the pt Defendant. He filed a witness statement on 5th September 2018. Briefly his evidence was that the relationship between the Plaintiff and pt Defendant dates to 2007. The Plaintiff leased Stand 4747 Kulima Tower then known as Celtel Zambia Limited. According to DWl-2 the lease was for a period of one year from pt June 2007 at a monthly rental of ZMW 1500.00 paid quarterly in advance. DW 1-2 stated that despite the Plaintiff not signing the lease agreement, it continued paying rent and observed the rent obligations (page 55 of the 1 st Defendant's bundle of documents). He maintained that the Plaintiff was not consistent in paying rentals. That as at January 2013 the Plaintiff was in arrears ofZMW38,399.56 which amount was brought forward in subsequent years (pages 55 and 63 pt Defendant's bundle of documents). According to DWl-2, the Plaintiff made a payment of ZMW26,622.00 on 8th October 2013 which did to cover the ZMW31,322 from the invoices issued between 151 January 2013 to pt October 2013 . A further payment ofZMW38,399.56 was paid by the Plaintiff. ((9 DWl-2 stated that following the increment of rentals tc ZMW7440.00 from 1 st April 2016, the Plaintiff did not make timely payments towards settlement of the opening balances of ZMW38,399.56 and the accumulated rental from 2013 (pages 63, 64, 68 and 70 of the pt Defendant's bundle of pleadings). That at the time distress was levied the Plaintiff owed a sum of ZMW80, 786.06 to the Defendant and the Plaintiff continued in occupation and as at I st July 2018, the outstanding amount stood at ZMW286,829.90. In cross-examination by Counsel for the Plaintiff he confirmed that the rent was ZMW7,440.00 per month inclusive of withholding tax payable three months in J6 I Page advance. When referred to page 63 of the Plaintiffs bundle of documents, he identified the entry ofZMW25,891.20 as the quaiterrentals. He conceded that when this amount is divided into 3 months, it translated into ZMW8,630.40 with VAT inclusive of withholding tax. DWl-2 maintained that in 2013 the rental was ZMW2,610 and in 2014 the rent was ZMW2,250.00 per month (page 29 of Plaintiffs bundle of documents). DWI-2 explained that the duration of the lease was from pt January 2013. He reiterated the rental owing as per his witness statement was up to July 2018 though the statement only showed up to 2017. He clarified that the rental amount was inclusive of withholding tax and VAT as per page 68 of the pt Defendant's bundle of documents. DWI-2 told the Court that the pt Defendant continued to accept rental payments from the Plaintiff in a block amount. In respect to the letter from the acting Director Real Estate dated 22nd August 2016, the letter was rejecting the Plaintiffs counter proposal. DWI-2 confirmed that where an invoice is prepared each quarter it was expected the client would pay within 21 days of receipt. In cases of default, the matter would be referred to the legal department. He referred to correspondence between the Managing Director of Zambian Towers and Director of Real Estate from the I st Defendant which constituted a notice of demand (page 57 of the Plaintiffs bundle of documents). In re-examination, DWI-2 clarified that ZMW7,440.00 was the correct rental and was not inclusive of 16% VAT thereby taking the amount to ZMW8,630.40 and translated to ZMW25,889.85 per quarter. He explained that the correspondence between the parties was through the statement which showed the amount owing including invoices sent and relied on pages 62 and 66 of the pt Defendant's bundle of documents. In terms of the two leases in 2013, DWI-2 clarified that the Plaintiff had a habit of not acting on the leases sent to them so one was sent in January 2013 and another in July 2013. The January 2013 lease was between the pt Defendant and Plaintiff whilst the lease sent in July 2013 was between the Plaintiff and Zambian Towers who were at the material time introduced as the Plaintiffs agents. In respect to the first lease of January 2013 it was signed by Mr. Nawa from Airtel Zambia whilst the J7 IP age r: ··• one between the 1 st Defendant and Zambian Towers was not executed by Zambian Towers. DWl-3 was Anthony Kabayi Chimwangwa a land economist working for IHS Zambia Limited as a site acquisition coordinator. He testified that he left the employ of the Plaintiff in August 2015. Further, that the Plaintiff had telecommunication equipment on the pt Defendant's property at Kulima Tower. He stated that there was a lease agreement between the 1 st Defendant and Celtel Zambia (page 1-18 of pt Defendanfs bundle of documents). He refen-ed to a lease between the 151 Defendant and Zambian Towers (pages 31-42 of the !51 Defendant's bundle of documents). DW 1-3 explained that Zambian Towers was a subsidiary of the Plaintiff and a part of the group of companies for Airtel. DWl-3 informed the Court that Zambian Towers was managing the towers and the relationship with the Plaintiff. He reiterated that Zambian Towers paid for the rentals and ownership of the equipment belonging to it. DWI-3 informed Court that the Plaintiff continued to pay his salary even after Zambian Towers took over the tower. In 20 I 5, Zambian Towers was bought by IHS as a majority shareholder. He explained that the transaction between IHS and Airtel was completed in August 2015 and IHS took over Zambian Towers in August 2015 and it was agreed that IHS takes over all the towers and equipment, payment of rentals and management obligations of the tenant. Further, that IHS rejected the Kulima Tower site as there was no valid lease agreement. DWl-3 was unsure as to who paid the rentals after August 2015. In cross-examination, he conceded that he was not privy to all the details of the sale of the establishment of Zambian Towers. He maintained that in April 2016, the Plaintiff was operating the tower. He clarified that there was a standard lease agreement prepared by himself and approved by the legal manager. When questioned on the relationship between IHS and Airtel Zambia Limited, he stated that IHS was a different company from Airtel and there was no agency relationship between IHS and Airtel Zambia Limited. The Plaintiff did not call any witnesses in its defence to the counterclaim. JS I Page Both the I st Defendant and Plaintiff filed written submissions which I have considered. Analysis and determination From the pleadings and arguments herein, the issues for determination in my view can be classified as follows : I. Whether the Plaintiff had an agent in the name of Zambia Towers Limited. 2. Whether the 1 st Defendant can rely on an unexecuted lease. 3. Who is liable to pay rental arrears to the I st Defendant. 4. Whether the 1 st Defendant is entitled to the reliefs sought. <a Findings It is not in dispute that the Plaintiff was a tenant of the 1 st Defendant from I st June 2007 for a duration of one year subject to renewal for a further term. Following, there is a lease dated pt January 2013 between the pt Defendant as landlord and Plaintiff as tenant for a duration of three (3) years subject to the renewal for a like period relating to the roof top at Kulima Tower on Stand 4797 Lusaka even though the lease states Stand 6907 Lusaka and the lease was duly executed. It is not in dispute that a rental variation was communicated to the Plaintiff. The areas of contention are whether or not the Plaintiff is liable to pay the increased rent. {. Both parties cited the case of Khalid Mohammed v The Attorney-General [1982} ZR , Kambela Mazoka and Others v Levy Patrick Mwanawasa [2005] ZR 1382 relating to the burden of proof. It is trite law that he who alleges must prove his case and I am so guided by the Supreme Court. Declaration that rent properly increased by notice The 1 st Defendant seeks a declaration that the rent was properly increased by notice and the Plaintiff is under an obligation to pay the rent at the new rate of ZMW7,440.00 per month. This aspect shall be addressed together with the issue whether or not the Plaintiff is and has been at all material times had the obligation to pay rent. J9 I Pag e Before I proceed to determine the main issues, I have to detennine whether Zambian Towers or IHS was an agent of the Plaintiff as this will assist the Court ultimately dete1mine which party is liable to pay the rent to the 1 si Defendant. The 1 si Defendant alleges the Plaintiff was represented by agents known as Zambian Towers and IHS respectively. The starting point is to examine the alleged appointment of agency by the Plaintiff. The law on agency is well settled and there is a plethora of cases in that respect. The learned authors of Halsbury's Laws of England, 4th Edition (re-issue) Vo/ 1 at paragraph 1 define an agent as follows : " the word "agency" connotes the relationship which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. The relation if agency arises whenever one person called "the principa/ 11 and consents so to act. Whether that relationship exists in any situation depends not on the p recise terminology employed by the parties to describe their relationship but on the true nature of the agreement or the circumstances of the relationship between the alleged principal and agent." The learned authors of Chitty on Contract Volume 2 at pages 1-2 paragraph 31-001 stated that: "At common law the word agency can be said to represent a body of general rules under which one person, the agent has power to change the legal relations of another, the principal. The full paradign relationship of principal and agent arises where one party, the principal consents that another, the agent, shall act on his behalf and the agent consents to so act. The consent is said to confer authority on the agent and.from this authority stems his power. " Further Chitty on contract Volume 2 page 5 paragraphs 31-006 states: "The consent of the principal, which is regarded as the basicjustificationfor the agent's power to affect his principal 's legal relations, may of course be JlO I Page ·• implied from his conduct or from his position with regard to the agent or vice versa." From the authorities cited above, it can be deduced that the determination as to whether or not a person is an agent of another depends on the nature of the agreement or the circumstance of the relationship between the alleged principal and agent. The basic ingredients for an agency relationship are consent and authority. In respect to the agency, DWl-1 testified that Zambian Towers was not a party to the lease agreement with the Plaintiff. DWl-1 told the Court that in 2010, the pt Defendant was introduced to Zambian Towers by the Plaintiff as its agents. This is vehemently denied by the Plaintiff and Counsel for the Plaintiff further argued that there was correspondence between the 1 st Defendant and Zambian Towers and that the 1 st Defendant had failed to pursue Zambian Towers. Counsel argued that the obligation to pay rent rested with Zambian Towers. D W 1-3 shed more light as a former employee of the I st Defendant and an employee of Zambian Towers and IHS. He explained that Zambian Towers was a subsidiary of the Plaintiff and in 2015 it was acquired by IHS which became a majority shareholder. He told Court that the antennas at Kulima Tower were not transferred to IHS as there was no valid lease. I find this evidence credible and is supported by an unexecuted lease dated pt July 2013 and 3rd September 2015 (pages 31-54 and page 43-45 of the pt Defendant's bundle of documents). According to the testimony ofDWl-3, in August 2015 Zambian Towers was bought by IHS which took over Zambian Towers consequently taking over all the towers and equipment, payment of rentals and management obligation of the Landlord. It is contended that Zambian Towers and IHS are agents of the Plaintiff. The Plaintiff in its defence to counter claim averred that Zambian Towers and IHS are not its agents. The Plaintiff also argues that the lease which is subject to this action is the one executed between the pt Defendant and Plaintiff on pt January 2013 . A perusal of the record show there is an unsigned letter dated 5th February 2016 addressed to Zambian Towers Limited/ Airtel advising of rental increment. It is followed by a signed letter dated 15th February addressed to Zambian Towers Jll I Page Limited/ Airtel. Curiously the response on 25th April 2016 is from IHS which introduces itself as a subcontractor of Zambian Towers Limited. There is a schedule of locations which includes Kulima Tower. On 30th June 2016, the Plaintiff wrote a letter to the 1 st Defendant rejecting the proposed rental increment but intimating the renewal of the lease agreement. It is clear that there was an exchange of correspondence between the Plaintiff, 1 st Defendant, Zambian Towers and at one point with IHS. Counsel for the Plaintiffs argument is that there is no proof any communication was sent to the Plaintiff as there is no acknowledgement. I find this argument rather weak as the letters dated 26th July 2016 from the Plaintiff was responded to by the l51 Defendant on 22nd August 2016 meaning the Plaintiff had sight of these letters. It is my finding that there was an agency relationship between the Plaintiff and Zambian Towers as discerned from the correspondence with Airtel has the disclosed principal. This agency relationship is confirmed by DWI-1 whose evidence I find credible. It is my further finding that Airtel was a majority shareholder in Zambian Towers as this evidence remained unchallenged. The agency relationship can further be disce1ned from the statement of accounts that shows both Airtel and Zambian Towers having paid rentals on diver dates whilst the unexecuted lease was subsisting. The record shows that on 15th June 2016 Zambian Towers made a rental payment to the 1 st Defendant. Despite the Plaintiff contending that it is or was not privy to the lease between the 1 st Defendant and Zambian Towers, the documentary evidence on record reveals otherwise. I say so because page 57 of the Defendant's bundle of documents shows a letter dated 15th February 2016 addressed to Zambian Towers. The said letter is a notice to increase rent to ZMW7,440.00 and in response to this letter the Plaintiff through a letter dated 30th June 2016 made reference to the letter of 15th February 2016 as follows: "That notwithstanding, we have no objection to your suggestion to increase the rent, we would however, counter with an increase of K2,950.00 per month to be paid quarterly from the current rental of K2, 610. 00 per month. " J12 I Page Subsequent to this the Plaintiff wrote another letter dated 26th July 2016 in which it intimated that Management was willing to accept gross rental amount of ZMW3,500.00 per month to be paid one year in advance. I deliberately reproduced the above paragraph from the Plaintiffs letter of 30th June 2016 to show that the Plaintiff was aware of the existence of the lease agreement between the 1 st Defendant and Zambian Towers dated 3rd September 2013. The lease agreement commencing on 3rd September 2013 was for rent payable at ZMW2,610.00 per month which monthly rental is referred to by the Plaintiff in its letter to the 1 st Defendant in response to the notice to increase rent (page 53 of the Defendant's bundle of documents). I cannot fathom how the Plaintiff would respond to a letter dated 15th February 2016 and also refer to rental of ZMW2,610 per month which involves a property leased under an agreement that it is not privy to. ,. Given the circumstances of this case and what transpired amongst the Plaintiff, Zambian Towers and 1 st Defendant and arising from my earlier finding that there was an agency between the Plaintiff and Zambian Towers, I am of the considered view that Zambian Towers were agents of the Plaintiff and consequently the Plaintiff as principal is liable to pay the rent to the 1 st Defendant. Even though the I st Defendant seeks a declaration that rent was properly increased by notice and the Plaintiff is under an obligation to pay the rent at the new rate of ZMW7440.00 per month per antenna, I am of the considered view that in these circumstances, it is not an appropriate remedy to grant moreso that the I st Defendant is claiming for payment of rental arrears from the Plaintiff herein. Rental arrears The next issue for determination is whether the Plaintiff owed the 1 st Defendant rent and whether it is under an obligation to pay rent and settle all rental arrears. In Black 's Law Dictionary, 5th Edition Thomson Reuters, rent is defined as: "Consideration paid usually periodically for the use or occupation of property ". J13 I Page ·• • In Property Holding Company Limitedv Clarke [1945} 1 ALLER 1653 at page 173, Evershed L. J approved a passage in Holdsworth History of England that: ''In modern law rent is not conceived of a thing, but rather has a payment, which the tenant is bound by his contract to make to his landlord. " A tenant is obliged to pay rent as and when it is due. There is only one executed lease agreement between the Plaintiff and 1 st Defendant which expired in 2015. Following that, the Plaintiff was advised of the rental increment, made a counter proposal which was rejected and continued to pay rent at the original rate. What then is the effect of an unexecuted lease agreement? Though the lease was never signed the 1 st Defendant averred that the only objection to the lease was on the rent increment. Whilst all this was happening, the Plaintiff continued to occupy the premises. The implication is that from the conduct of the parties a tenancy at will was created. According to the learned authors of Megarry and Wade, the Law of Real Property page 771 paragraph - 075: "A tenancy at will arises whenever a tenant with the consent of the owner occupies land as a tenant, on the terms that either party may determine the tenancy at any time. This kind of tenancy may be created either expressly. Common examples are where a tenant whose lease has expired holds over with the land's permission; where a person is allowed in possession while the parties negotiate the terms of a lease; where a tenant takes possession under a void lease, or under a mere agreement for lease and no periodic tenancy has arisen from the payment of rent. " From the foregoing definition it can be said that a tenancy at will is a property tenure without a contract or lease which can be terminated at any time. In applying these principles to the present case, the parties are agreeable that the leases dated 1 st July 2013 and 3rd September 2013 are unsigned, notwithstanding this fact the 1 st Defendant in its counter claim averred that the Plaintiff settled the arrears J14 I Page for the period April 2015 to May 2016. What this entails is that by conduct the parties had created a tenancy at will and as such the 1 st Defendant can rely on the unexecuted lease. Counsel for the Plaintiff argued that the obligation to pay rested with Zambian Towers. I agree with Counsel for the I st Defendant's submission that there was an agreement between the Plaintiff and I st Defendant which gave an obligation to the Plaintiff to pay rent and the Plaintiff is bound by the terms of the unsigned lease. Increase of rent by notice Having made a finding that the obligation to pay rent falls on the Plaintiff, the issue for determination is what rent is owed and at what rate. ·• Counsel for the Plaintiff contends that there is uncertainty if any rent is owed or even who owes it. From my finding in the preceding paragraph, the party responsible for paying rent is the Plaintiff. As to the quantum of rental payable, the I st Defendant in a letter dated 15th February 20 16 notified Zambian Towers that rent would be increased to ZMW7,440.00 effective of pt April 2016. The Plaintiff on the other hand contends that the said letter was a notice of intention to increase rent and not a notice to increase rent. The Plaintiff further argues that it made a counter offer to increase rent to ZMW3,500.00 which proposal was rejected by the I st Defendant and the Plaintiff proceeded to pay rent on the basis of the initial agreement presumably the 2013 lease. (. In the letter appearing at page 56 of the 1 st Defendant's bundle of documents dated 5th February 2016 and addressed to the Managing Director of Zambian Towers Limited/Airtel Roof Top, Kulima Tower states as follows: "Re- LANDLOIW NOTICE TO INCREASE RENT Kindly be advised that we shall increase rent pertaining to the space you occupy at KULIMA TOWERS Roof Top with effect from JS1 April 2016. The reason for the increase among other things is to bring rentals to a sustainable level and closer to what is obtaining on the market. JlS I Page In view of the above, the new monthly rentals payable with effect from JS' April 2016 is K7440.00 per antenna. Please note that our rentals despite this increase are fair, reasonable and still below open market value. We appreciate your continued cooperation and support in our pursuit to improve services. Yours faithfully, Bwalya Makasa Ag/Director of Real Estates Management and Sales. • Counsel for the Plaintiff argues that there is no evidence of an acknowledgment by the Plaintiff and that the 1 s1 Defendant has failed to discharge its burden to prove its counterclaim. Relying on the clauses in the 2013 lease which I find the parties had elected to treat as effective by their conduct, a perusal of the relevant clause on rent review shows that: "the rent payable may be reviewed by the landlord from time to time within the landlord's discretion, following completion of the initial term. " In a letter from the Plaintiff to the pt Defendant dated 26th July 2016, it states as follows: Reference is made to the subject matter above and the meeting held at your offices on Friday 22nd July 2016. We have taken note of the market search undertaken by yourselves and the resolution of your Board of Directors. Furthermore, we wish to confirm that all your concerns were presented to Airtel Networks Zambia Limited Pie Management and management is willing to accept a gross rental amount of K3500 per month to be paid one year in advance and to be renewed annually at 10%. We thank you for your valued co-operation and hope that you will find our counter proposal acceptable. By letter dated 22nd August 2016 from the Plaintiff to the 151 Defendant the relevant part states as follows: J16 I P age "We regret to inform you that your counter offer to pay gross rentals amounting to K3500.00 per month to be paid one year in advance has been rejected as this does not conform to the Board's approved rate of K7,440.00 per month. In light of the foregoing therefore, it is imperative that payment of the adjusted rent is received by NHA without further delay. Please find a copy of your account statement. • The mere fact that the Plaintiff opposed the rent did not mean it was not payable. It was e1Toneous on the part of the Plaintiff to continue paying rent based on the old rentals despite the clear notification from the 1 st Defendant on the rental increment. The correct inference to draw from the facts on record is that since the Plaintiff continued with possession of the property, it had an obligation to pay rent at ZMW7 440.00 per antenna per month to the 1 st Defendant from 1 st April 2016. • Paying rent due into Court The I st Defendant seeks an Order that the Plaintiff pays rent due into Court pending the determination of this matter. I agree with Counsel for the Plaintiff that paying rent into Court is interlocutory pending the determination of the action. This claim has been ove11aken by events and I shall pay scanty attention to it. Execution of warrant of distress The l st Defendant seeks an Order that the execution of the waITant of distress was legal and the I s1 Defendant is entitled to collect the rent demanded under the warrant of distress. The evidence reveals that following the Plaintiffs default in paying the increased rate, the 1 st Defendant instructed the 2nd Defendant to levy distress against the Plaintiff. It is trite law that a warrant in distress can be used against a tenant who is in rent arrears. Counsel for the Plaintiff argues that distraining for rent was wrongful as the J17 I Page • l st Defendant failed to show that the rent in the sum of ZMW80, 786.06 was owing to the Plaintiff. On the other hand, Counsel for the I st Defendant argues that the warrant of distress issued against the Plaintiff was legal as it is the landlord's right. Counsel for the 1 st Defendant relied on a passage from the learned authors of Halsbury 's Laws of England, 4th Edition Volume 13 as follows: "The right of the landlord to dis train for arrears of rent arises at common law and need not be expressly reserved. It enables the landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. " The 1 st Defendant exhibited debtor statements at pages 68 to 70 of its bundle of documents. On page 68 is an entry under Zambian Towers Limited for the period 15th June 2016 for the sum of ZMW28,188.00. However, there is no evidence or justification as to how this amount was arrived at. Page 69 shows an entry under the Plaintiffs name for the sum ofZMW28,188.00 which was due on 24th August 2013, but going by the l st Defendant's counter claim in paragraph 9, the Plaintiff paid rent up to May 20 I 6, hence this entry shall not to be taken into account. Lastly the entry on page 70 is the same as that on page 68. I have further examined the statement of accounts appearing at pages 63 and 64 of the 1 st Defendant's bundle of documents. It shows that the statement runs from 31 st December 2012 with an opening balance of ZMW38,399.56 which DWl-2 stated was rental arrears in 2012. The statement runs up to 1 st July 2016 showing arrears of ZMW80,786.06. It is not clear for which period these arrears relate to. On the question as to whether the 1 st Defendant is entitled to collect the rent demanded under the warrant of distress for the sum of ZMW80,786.06 as at 9th September 2016, Counsel for the Plaintiff was emphatic that the 1 st Defendant failed to translate the statement of claim which had discrepancies. Further, that the 1 st Defendant failed to show that the amount of ZMW7440.00 was agreed to by the patties as the revised monthly rentals. According to paragraph 8 of the !51 Defendant's defence and counterclaim, the Plaintiffs account was in arrears of ZMW38,399.56 and this was corroborated by J18 I P age • DWl-2. The 1 st Defendant averred in paragraph 9 of its counterclaim that the Plaintiff paid the rent for the period April 2015 to May 2016. In its rebuttal in paragraph 14 of the Plaintiff's defence to the counterclaim, it states that after the rejection of the rent increment, the Plaintiff proceeded to pay rent on the same basis as the initial agreement. It is not clear which agreement is being referred to. However, in terms of the unpaid rentals and the warrant of distress, the evidence on record reveals that the Plaintiff paid rentals at the rate of ZMW2610.00 as opposed to the new rate of ZMW7,440.00 resulting in an underpayment of rentals. It is my finding that the Plaintiff is indebted to the 1 si Defendant for the underpayment and consequently the execution of the warrant of distress was legal. It is the pt Defendant's claim that the Plaintiff's indebtedness now stands at ZMW 178,086.86. Counsel for the Plaintiff argued that all the defence witnesses failed to establish the quantum of monies owing to the 1 st Defendant and that this claim should fail. In this respect, the 1 si Defendant has failed to substantiate how it arrived at the ZMWl 78,086.86. For the foregoing reasons, the pt Defendant's counter claim succeeds to the extent that rent was properly increased by notice and the Plaintiff is under an obligation to pay rent at the revised rate of ZMW7,440.00 from April 2016. I further find that execution of the warrant of distress was legal except for the amount endorsed thereon. In conclusion, I Order patties to appear before the Deputy Registrar for purpose of ascertaining the amount that the 1 si Defendant is entitled to collect under the warrant of distress including the outstanding balance on rent. Once the amount payable to the 1 st Defendant is ascertained it shall be paid within sixty ( 60) days together with interest at the short-te1m deposit rate from date of counter claim to date of Judgment and thereafter at the commercial lending rate until full payment of the Judgment sum. I award costs of this counter claim to the 1 si Defendant to be taxed in default of agreement. J19 I Page Leave to appeal is hereby granted. Delivered at Lusaka this 16th day of January 2020. IRENE ZEKO MBEWE HIGH COURT JUDGE J20 I Page